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EXHIBIT 99.2
GACC MORTGAGE LOAN PURCHASE AGREEMENT
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MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated
and effective November 29, 2007, between German American Capital
Corporation, as
seller (the "Seller"), and Deutsche Mortgage & Asset
Receiving Corporation, as
purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise
convey to
the Purchaser, and the Purchaser desires to purchase, subject to
the terms and
conditions set forth below, the commercial, multifamily and
manufactured housing
mortgage loans (collectively, the "Mortgage Loans") identified
on the schedule
annexed hereto as Exhibit A (the "Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred,
together
with other commercial, multifamily and manufactured housing
mortgage loans (such
mortgage loans, the "Other Mortgage Loans") to CD 2007-CD5
Mortgage Trust, a
trust fund (the "Trust Fund") to be formed by the Purchaser, the
beneficial
ownership of which will be evidenced by a series of mortgage
pass-through
certificates (the "Certificates"). Certain classes of the
Certificates will be
rated by Moody's Investors Service, Inc., and Standard and
Poor's Rating
Services, a division of The McGraw Hill Companies, Inc.
(together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered
Certificates")
will be registered under the Securities Act of 1933, as amended
(the "Securities
Act"). The Trust Fund will be created and the Certificates will
be issued
pursuant to a pooling and servicing agreement to be dated as of
November 1, 2007
(the "Pooling and Servicing Agreement"), among the Purchaser, as
depositor,
Capmark Finance Inc., as the master servicer with respect to the
Mortgage Loans
sold to the trust by Citigroup Global Markets Realty Corp.,
CWCapital LLC and
SunTrust Bank (other than the Charles River Plaza North Mortgage
Loan), Wachovia
Bank, National Association, as the master servicer with respect
to the Mortgage
Loans sold to the trust by German American Capital Corporation
and Artesia
Mortgage Capital Corporation (other than the USFS Industrial
Distribution
Portfolio Mortgage Loan, the 85 Tenth Avenue Mortgage Loan and
the Georgian
Towers Mortgage Loan) (the "Wachovia Master Servicer"), LNR
Partners, Inc., as
special servicer with respect to all of the Mortgage Loans other
than the
Non-Serviced Mortgage Loans (as defined in the Pooling and
Servicing Agreement)
(the "Special Servicer"), Deutsche Bank Trust Company Americas,
as certificate
administrator and paying agent (in its capacity as certificate
administrator,
the "Certificate Administrator"), and Wells Fargo Bank, N.A., as
trustee and
custodian (in its capacity as trustee, the "Trustee").
The Purchaser intends to sell certain of the Certificates to
Deutsche Bank Securities Inc. ("DBS"), Citigroup Global Markets
Inc. ("CGM"),
Credit Suisse Securities (USA) LLC ("CS") and SunTrust Robinson
Humphrey, Inc.
("SRH," and together with DBS, CGM and CS, the "Underwriters")
pursuant to an
underwriting agreement dated November 21, 2007 (the
"Underwriting Agreement").
The Purchaser intends to sell certain other Certificates (the
"Non Registered
Certificates") pursuant to a certificate purchase agreement
dated November 21,
2007 (the "Certificate Purchase Agreement") to DBS and CGM
(collectively in such
capacity, the "Initial Purchasers"). Capitalized terms not
otherwise defined
herein have the meanings assigned to them in the Pooling and
Servicing Agreement
(as of the Closing Date) or in the Indemnification Agreement
which was entered
into by the Seller, the Purchaser and the Underwriters on
November 20, 2007 (the
"GACC Indemnification Agreement").
Now, therefore, in consideration of the premises and the
mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
Subject to the terms and conditions set forth in this Agreement,
the
Seller agrees to sell, assign, transfer and otherwise convey to
the Purchaser
upon receipt of the Mortgage Loan Purchase Price referred to in
this Section 1,
and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale
of the Mortgage Loans shall take place on November 29, 2007 or
such other date
as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As
of the related Due Date in November 2007 (the "Cut-off Date"),
the Mortgage
Loans will have an aggregate principal balance (the "Aggregate
Cut-off Date
Balance"), after application of all payments of principal due
thereon on or
before the Cut-off Date, whether or not received, of
$709,418,242, subject to a
variance of plus or minus 5.0%. The purchase price of the
Mortgage Loans
(inclusive of accrued interest and exclusive of the Seller's pro
rata share of
the costs set forth in Section 9 hereof) (the "Mortgage Loan
Purchase Price")
shall be equal to the amount set forth on the cross receipt
between the Seller
and the Purchaser dated the date hereof.
SECTION 2. Conveyance of Mortgage Loans.
(a) On the Closing Date, subject only to receipt by the Seller
of
the Mortgage Loan Purchase Price, the satisfaction of the other
closing
conditions required to be satisfied on the part of Purchaser
pursuant to Section
7 and the issuance of the Certificates, the Seller agrees to (i)
sell, transfer,
assign, set over and otherwise convey to the Purchaser, without
recourse, all
the right, title and interest of the Seller in and to the
Mortgage Loans
identified on the Mortgage Loan Schedule, including all rights
to payment in
respect thereof, which includes all interest and principal
received or
receivable by the Seller on or with respect to the Mortgage
Loans after the
Cut-off Date (subject to the proviso in the next sentence),
together with all of
the Seller's right, title and interest in and to the proceeds of
any related
title, hazard, or other insurance policies and any escrow,
reserve or other
comparable accounts related to the Mortgage Loans, subject to
(i) that certain
Agreement to Appointment of Master Servicer dated as of November
29, 2007
between the Wachovia Master Servicer, the Purchaser and the
Seller, (ii) the
rights of the holders of the USFS Industrial Distribution
Portfolio Pari Passu
Loans under the USFS Industrial Distribution Portfolio
Intercreditor Agreement,
(iii) the rights of the holders of the 85 Tenth Avenue Pari
Passu Loans and the
85 Tenth Avenue B Loan under the 85 Tenth Avenue Intercreditor
Agreement and
(iv) the rights of the holders of the Georgian Towers Pari Passu
Loan and the
Georgian Towers B Loan under the Georgian Towers Intercreditor
Agreement. The
Purchaser shall be entitled to (and, to the extent received by
or on behalf of
the Seller, the Seller shall deliver or cause to be delivered to
or at the
direction of the Purchaser) all scheduled payments of principal
and interest due
on the Mortgage Loans after the Cut-off Date, and all other
recoveries of
principal and interest collected thereon after the Cut-off Date;
provided,
however, that all scheduled payments of principal and interest
accrued but not
paid thereon, due on or before the Cut-off Date and collected
after the Cut-off
Date shall belong to the Seller, and the Purchaser or its
successors or assigns
shall promptly remit any such payments to the Seller.
The Seller shall (i) on or prior to the Closing Date, retain a
third
party vendor reasonably satisfactory to the Controlling Class
Representative
(which may be the Custodian) to complete the assignment and
recordation of the
related Loan Documents, as contemplated by the fourth paragraph
of Section
2.01(a) of the Pooling and Servicing Agreement and (ii) take all
actions
reasonably necessary to perform its obligations described in the
fourth
paragraph of Section 2.01(a) of the Pooling and Servicing
Agreement.
(b) In connection with the Seller's assignment pursuant to
subsection (a) above, the Seller shall deliver to and deposit
with, or cause to
be delivered to and deposited with, the Custodian, on or before
the Closing
Date, the documents and/or instruments referred to in clauses
(i), (ii), (vii),
(xi) and (xvii) of Exhibit B for each Mortgage Loan so assigned
(with originals
with respect to clauses (i) and (xvii) and copies with respect
to clauses (ii),
(vii) and (xi)) and, within 30 days following the Closing Date,
the remaining
applicable documents in Exhibit B for each such Mortgage Loan
with copies to the
Wachovia Master Servicer.
(c) If the Seller cannot deliver, or cause to be delivered, as
to
any Mortgage Loan, the original Note, the Seller shall deliver a
copy or
duplicate original of such Note, together with an affidavit
certifying that the
original thereof has been lost or destroyed and an
indemnification in connection
therewith in favor of the Trustee.
(d) If the Seller cannot deliver, or cause to be delivered, as
to
any Mortgage Loan, the original or a copy of any of the
documents and/or
instruments referred to in clauses (ii), (iv)(A), (v)(A),
(viii)(A), (xiv) and
(xvi) of Exhibit B and the UCC financing statements and UCC
assignments of
financing statements referred to in clause (xiii) of Exhibit B,
with evidence of
recording or filing thereon, solely because of a delay caused by
the public
recording or filing office where such document or instrument has
been delivered
for recordation or filing, or because such original recorded or
filed document
has been lost or returned from the recording or filing office
and subsequently
lost, as the case may be, the delivery requirements of Section
2(b) shall be
deemed to have been satisfied as to such missing item, and such
missing item
shall be deemed to have been included in the related Mortgage
File, provided
that a copy of such document or instrument (without evidence of
recording or
filing thereon, but certified (which certificate may relate to
multiple
documents and/or instruments) by the applicable public recording
or filing
office, the applicable title insurance company or by the Seller
to be a true and
complete copy of the original thereof submitted for recording or
filing, as the
case may be) has been delivered to the Trustee within 45 days
after the Closing
Date, and either the original of such missing document or
instrument, or a copy
thereof, with evidence of recording or filing, as the case may
be, thereon, is
delivered to or at the direction of the Purchaser (or any
subsequent owner of
the affected Mortgage Loan, including without limitation the
Trustee) within 180
days after the Closing Date (or within such longer period after
the Closing Date
as the Purchaser (or such subsequent owner) may consent to,
which consent shall
not be unreasonably withheld so long as the Seller has provided
the Purchaser
(or such subsequent owner) with evidence of such recording or
filing, as the
case may be, or has certified to the Purchaser (or such
subsequent owner) as to
the occurrence of such recording or filing, as the case may be,
and is, as
certified to the Purchaser (or such subsequent owner) no less
often than
quarterly, in good faith attempting to obtain from the
appropriate public
recording or filing office such original or copy).
If the Seller cannot deliver, or cause to be delivered, as to
any
Mortgage Loan, the original or a copy of the related lender's
title insurance
policy referred to in clause (vii) of Exhibit B solely because
such policy has
not yet been issued, the delivery requirements of Section 2(b)
shall be deemed
to be satisfied as to such missing item, and such missing item
shall be deemed
to have been included in the related Mortgage File, provided
that the Seller has
delivered to the Trustee a binder marked as binding and
countersigned by the
title insurer or its authorized agent (which may be a pro forma
or specimen
title insurance policy which has been accepted or approved in
writing as binding
by the related title insurance company) or an acknowledged
closing instruction
or escrow letter, and the Seller shall deliver to or at the
direction of the
Purchaser (or any subsequent owner of the affected Mortgage
Loan, including
without limitation the Trustee), promptly following the receipt
thereof, the
original related lender's title insurance policy (or a copy
thereof). In
addition, notwithstanding anything to the contrary contained
herein, if there
exists with respect to any group of related cross-collateralized
Mortgage Loans
only one original of any document referred to in Exhibit B
covering all the
Mortgage Loans in such group, then the inclusion of the original
of such
document in the Mortgage File for any of the Mortgage Loans in
such group shall
be deemed an inclusion of such original in the Mortgage File for
each such
Mortgage Loan. On the Closing Date, upon (i) notification from
the Seller that
the purchase price referred to in Section 1 has been received by
the Seller and
(ii) the issuance of the Certificates, the Purchaser shall be
authorized to
release to the Trustee or its designee all of the Mortgage Files
in the
Purchaser's possession relating to the Mortgage Loans.
Notwithstanding anything herein to the contrary, with respect to
the
documents referred to in clause (xvii) and clause (xviii) on
Exhibit B, the
Wachovia Master Servicer shall hold the original of each such
document in trust
on behalf of the Trustee in order to draw on such letter of
credit on behalf of
the Trust, and the Seller shall be deemed to have satisfied the
delivery
requirements of this Agreement by delivering the original of
each such document
to the Wachovia Master Servicer. The Seller shall pay any costs
of assignment or
amendment of such letter of credit required (which assignment or
amendment shall
change the beneficiary of the letter of credit to the Trust in
care of the
Wachovia Master Servicer) in order for the Wachovia Master
Servicer to draw on
such letter of credit on behalf of the Trust. In the event that
the documents
specified in clause (xviii) on Exhibit B are missing because the
related
assignment or amendment documents have not been completed, the
Seller shall take
all reasonably necessary steps to enable the Wachovia Master
Servicer to draw on
the related letter of credit on behalf of the Trust including,
if necessary,
drawing on the letter of credit in its own name pursuant to
written instructions
from the Wachovia Master Servicer and immediately remitting such
funds (or
causing such funds to be remitted) to the Wachovia Master
Servicer.
Contemporaneously with the execution of this Agreement by
the
Purchaser and the Seller, the Seller shall deliver a power of
attorney to each
of the Wachovia Master Servicer and the Special Servicer at the
direction of the
Controlling Class Representative or its assignees, to take such
other action as
is necessary to effect the delivery, assignment and/or
recordation of any
documents and/or instruments relating to any Mortgage Loan which
have not been
delivered, assigned or recorded at the time required for
enforcement by the
Trust Fund. The Seller will be required to effect at its expense
the assignment
and recordation of its Loan Documents until the assignment and
recordation of
all such Loan Documents has been completed.
(e) As to each Mortgage Loan, the Seller shall be responsible
for
all costs associated with the recording or filing, as the case
may be, of each
assignment referred to in clauses (iii) and (viii)(B) of Exhibit
B and each
UCC-2 and UCC-3 assignment of financing statement, if any,
referred to in clause
(v)(B) of Exhibit B. If any such document or instrument is lost
or returned
unrecorded or unfiled, as the case may be, because of a defect
therein, the
Seller shall promptly prepare or cause the preparation of a
substitute therefor
or cure or cause the curing of such defect, as the case may be,
and shall
thereafter deliver the substitute or corrected document to or at
the direction
of the Purchaser (or any subsequent owner of the affected
Mortgage Loan,
including without limitation the Trustee) for recording or
filing, as
appropriate, at the Seller's expense.
(f) Except as provided below, all documents and records in
the
Seller's possession (or under its control) relating to the
Mortgage Loans that
are not required to be a part of a Mortgage File in accordance
with Exhibit B
but that are reasonably required to service the Mortgage Loans
(all such other
documents and records, including Environmental Reports, as to
any Mortgage Loan,
the "Servicing File"), together with all escrow payments,
reserve funds and
other comparable funds in the possession of the Seller (or under
its control)
with respect to the Mortgage Loans, shall (unless they are held
by a
sub-servicer that shall, as of the Closing Date, begin acting on
behalf of the
Wachovia Master Servicer pursuant to a written agreement between
such parties)
be delivered by the Seller (or its agent) to the Purchaser (or
its designee) no
later than the Closing Date; provided, however, the Seller shall
not be required
to deliver, and the Servicing File shall not be deemed to
include drafts of Loan
Documents, attorney-client or internal communications of the
Seller or its
affiliates or Seller's credit underwriting or due diligence
analyses or related
data (as distinguished from Environmental Reports, financial
statements, credit
reports, title reports, structural and engineering reports,
appraisals and other
reports, analyses or data provided by the Borrowers or third
parties other than
the Seller's attorneys). If a sub-servicer shall, as of the
Closing Date, begin
acting on behalf of the Wachovia Master Servicer with respect to
any Mortgage
Loan pursuant to a written agreement between such parties, the
Seller or its
agent shall deliver a copy of the related Servicing File to the
Wachovia Master
Servicer.
(g) Each of the Seller's and the Purchaser's records will
reflect
the transfer of the Mortgage Loans to the Purchaser as a sale,
including for
accounting purposes. Following the transfer of the Mortgage
Loans to the
Purchaser, the Seller will not take any action inconsistent with
the ownership
of the Mortgage Loans by the Purchaser or its assignees.
(h) Furthermore, it is the express intent of the parties hereto
that
the conveyance of the Mortgage Loans by Seller to Purchaser as
provided in this
Agreement be, and be construed as, a sale of the Mortgage Loans
by Seller to
Purchaser and not a pledge of the Mortgage Loans by Seller to
Purchaser to
secure a debt or other obligation of Seller. However, in the
event that,
notwithstanding the intent of the parties, the Mortgage Loans
are held to be
property of Seller or if for any reason this Agreement is held
or deemed to
create a security interest in the Mortgage Loans:
(i) this Agreement shall hereby create a security agreement
within
the meaning of Articles 8 and 9 of the Uniform Commercial Code
in effect
in the applicable state;
(ii) the conveyance provided for in this Agreement shall
hereby
grant from Seller to Purchaser a security interest in and to all
of
Seller's right, title, and interest, whether now owned or
hereafter
acquired, in and to:
(A) all accounts, contract rights (including any
guarantees),
general intangibles, chattel paper, instruments, documents,
money,
deposit accounts, certificates of deposit, goods, letters of
credit,
advices of credit and investment property consisting of,
arising
from or relating to any of the property described in the
Mortgage
Loans, including the related Notes, Mortgages and title, hazard
and
other insurance policies, identified on the Mortgage Loan
Schedule,
and all distributions with respect thereto payable after the
Cut-off
Date;
(B) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit
accounts,
certificates of deposit, goods, letters of credit, advices of
credit
and investment property arising from or by virtue of the
disposition
of, or collections with respect to, or insurance proceeds
payable
with respect to, or claims against other persons with respect
to,
all or any part of the collateral described in clause (A)
above
(including any accrued discount realized on liquidation of
any
investment purchased at a discount), in each case, payable after
the
Cut-off Date; and
(C) all cash and non-cash proceeds of the collateral
described
in clauses (A) and (B) above payable after the Cut-off Date;
(iii) the possession by Purchaser or its assignee of the Notes
and
such other goods, letters of credit, advices of credit,
instruments,
money, documents, chattel paper or certificated securities shall
be deemed
to be possession by the secured party or possession by a
purchaser or a
person designated by him or her, for purposes of perfecting the
security
interest pursuant to the Uniform Commercial Code (including,
without
limitation, Sections 9-306, 9-313 and 9-314 thereof) as in force
in the
relevant jurisdiction; and
(iv) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding
such
property, shall be deemed to be notifications to, or
acknowledgments,
receipts or confirmations from, securities intermediaries,
bailees or
agents of, or persons holding for (as applicable), Purchaser or
its
assignee for the purpose of perfecting such security interest
under
applicable law.
The Seller at the direction of the Purchaser or its assignee,
shall,
to the extent consistent with this Agreement, take such actions
as may be
reasonably necessary to ensure that, if this Agreement were
deemed to create a
security interest in the Mortgage Loans and the proceeds
thereof, such security
interest would be a perfected security interest of first
priority under
applicable law and will be maintained as such throughout the
term of this
Agreement. In connection herewith, Purchaser and its assignee
shall have all of
the rights and remedies of a secured party and creditor under
the Uniform
Commercial Code as in force in the relevant jurisdiction and may
execute and
file such UCC Financing Statements as may be reasonably
necessary or appropriate
to accomplish the foregoing.
(i) It is further acknowledged and agreed by the Seller that
the
Purchaser intends to convey all right, title and interest of the
Purchaser in
and to the Mortgage Loans and all rights and remedies under this
Agreement
(excluding the Purchaser's rights and remedies under Section 9
below and the
GACC Indemnification Agreement) to the Trustee on behalf of
the
Certificateholders, including, without limitation, all rights
and remedies as
may be available under Section 6 to the Purchaser in the event
of a Material
Breach or a Material Defect; provided, that the Trustee on
behalf of the
Certificateholders shall be a third-party beneficiary of this
Agreement and
shall be entitled to enforce any obligations of the Seller
hereunder in
connection with a Material Breach or a Material Defect as if the
Trustee on
behalf of the Certificateholders had been an original party to
this Agreement.
SECTION 3. Examination of Mortgage Loan Files and Due
Diligence
Review.
The Seller shall reasonably cooperate with any examination of
the
Mortgage Files and Servicing Files that may be undertaken by or
on behalf of the
Purchaser. The fact that the Purchaser has conducted or has
failed to conduct
any partial or complete examination of the Mortgage Files and/or
Servicing Files
shall not affect the Purchaser's right to pursue any remedy
available in equity
or at law under Section 6 for a breach of the Seller's
representations,
warranties and covenants set forth in or contemplated by Section
4.
SECTION 4. Representations, Warranties and Covenants of the
Seller.
(a) The Seller hereby makes, as of the date hereof (or as of
such
other date specifically provided in the particular
representation or warranty),
to and for the benefit of the Purchaser, the Trustee on behalf
of the
Certificateholders and the respective successors-in-interest of
the Purchaser
and the Trustee, each of the representations and warranties set
forth in Exhibit
C with respect to each Mortgage Loan, subject to the exceptions
set forth in
Schedule C-1 to Exhibit C.
(b) In addition, the Seller, as of the date hereof, hereby
represents and warrants to, and covenants with, the Purchaser
that:
(i) The Seller is a corporation, duly organized, validly
existing
and in good standing under the laws of the State of Maryland and
is in
compliance with the laws of each State in which any Mortgaged
Property is
located to the extent necessary to ensure the enforceability of
each
Mortgage Loan and to perform its obligations under this
Agreement.
(ii) The execution and delivery of this Agreement by the Seller,
and
the performance of, and compliance with, the terms of this
Agreement by
the Seller, do not violate the Seller's organizational documents
or
constitute a default (or an event which, with notice or lapse of
time, or
both, would constitute a default) under, or result in the breach
of, any
material agreement or other instrument to which it is a party or
which is
applicable to it or any of its assets, in each case which
materially and
adversely affects the ability of the Seller to carry out the
transactions
contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into
and
consummate all transactions contemplated by this Agreement, has
duly
authorized the execution, delivery and performance of this
Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and
delivery by the Purchaser, constitutes a valid, legal and
binding
obligation of the Seller, enforceable against the Seller in
accordance
with the terms hereof, subject to (A) applicable bankruptcy,
insolvency,
reorganization, receivership, moratorium and other laws
affecting the
enforcement of creditors' rights generally, (B) general
principles of
equity, regardless of whether such enforcement is considered in
a
proceeding in equity or at law, and (C) public policy
considerations
underlying the securities laws, to the extent that such public
policy
considerations limit the enforceability of the provisions of
this
Agreement that purport to provide indemnification or
contribution for
securities laws liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance of, and
compliance with,
the terms of this Agreement do not constitute a violation of,
any law, any
judgment, order or decree of any court or arbiter, or any
order,
regulation or demand of any federal, state or local governmental
or
regulatory authority, which violation, in the Seller's good
faith and
reasonable judgment, is likely to affect materially and
adversely either
the ability of the Seller to perform its obligations under this
Agreement
or the financial condition of the Seller.
(vi) No litigation is pending or, to the best of the
Seller's
knowledge, threatened against the Seller the outcome of which,
in the
Seller's good faith and reasonable judgment, is likely to
materially and
adversely affect the ability of the Seller to perform its
obligations
under this Agreement or the financial condition of the
Seller.
(vii) The Seller has not dealt with any broker, investment
banker,
agent or other person, other than the Purchaser, the
Underwriters, the
Initial Purchasers, and their respective affiliates, that may be
entitled
to any commission or compensation in connection with the sale of
the
Mortgage Loans or the consummation of any of the other
transactions
contemplated hereby.
(viii) Insofar as it relates to the Mortgage Loans, the
information
set forth in Annex A-1 and Annex A-2 to the Prospectus
Supplement (as
defined in the GACC Indemnification Agreement) (the "Loan
Detail") and, to
the extent consistent therewith, the information set forth on
the diskette
attached to the Prospectus Supplement and the accompanying
prospectus (the
"Diskette"), is true and correct in all material respects.
Insofar as it
relates to the description of the Mortgage Loans and/or the
Seller and
does not represent a restatement or aggregation of the
information on the
Loan Detail, the information set forth in the Time of Sale
Information (as
defined in the GACC Indemnification Agreement), the Memorandum
(as defined
in the GACC Indemnification Agreement) (insofar as the
Prospectus
Supplement is an exhibit thereto) and in the Prospectus
Supplement under
the headings "Summary of the Prospectus Supplement--Relevant
Parties and
Dates--Sponsors," "--Mortgage Loan Sellers," "--Originators,"
"--The
Mortgage Pool," "Risk Factors--Risks Related to the Mortgage
Loans,"
"Transaction Parties--The Sponsors" and "Description of the
Mortgage Pool"
and the information set forth on Annex A-1 and Annex A-2 and
Annex B to
the Prospectus Supplement, and to the extent it contains
information
consistent with that on such Annex A-1 and Annex A-2 set forth
on the
Diskette, does not (or, in the case of the Time of Sale
Information, did
not as of the Time of Sale (as defined in the GACC
Indemnification
Agreement)) contain any untrue statement of a material fact or
(in the
case of the Memorandum, when read together with the other
information
specified therein as being available for review by investors)
omit to
state any material fact necessary to make the statements
therein, in light
of the circumstances under which they were made, not
misleading.
(ix) No consent, approval, authorization or order of,
registration
or filing with, or notice to, any governmental authority or
court is
required, under federal or state law (including, with respect to
any bulk
sale laws), for the execution, delivery and performance of, or
compliance
by, the Seller with this Agreement, or the consummation by the
Seller of
any transaction contemplated hereby, other than (1) the filing
or
recording of financing statements, instruments of assignment and
other
similar documents necessary in connection with the Seller's sale
of the
Mortgage Loans to the Purchaser, (2) such consents,
approvals,
authorizations, qualifications, registrations, filings or
notices as have
been obtained, made or given and (3) where the lack of such
consent,
approval, authorization, qualification, registration, filing or
notice
would not have a material adverse effect on the performance by
the Seller
under this Agreement.
(c) Upon discovery by any of the Seller or the parties to
the
Pooling and Servicing Agreement of a breach of any of the
representations and
warranties made pursuant to and set forth in subsection (b)
above which
materially and adversely affects the interests of the Purchaser
or a breach of
any of the representations and warranties made pursuant to
subsection (a) above
and set forth in Exhibit C which materially and adversely
affects the value of
any Mortgage Loan, the value of the related Mortgaged Property
or the interests
therein of the Purchaser, the Trustee on behalf of the
Certificateholders or any
Certificateholder, the party discovering such breach shall give
prompt written
notice to the Seller and/or the other parties, as
applicable.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents
and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing
and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser,
and the performance of, and compliance with, the terms of this
Agreement
by the Purchaser, do not violate the Purchaser's organizational
documents
or constitute a default (or an event which, with notice or lapse
of time,
or both, would constitute a default) under, or result in the
breach of,
any material agreement or other instrument to which it is a
party or which
is applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter
into
and consummate all transactions contemplated by this Agreement,
has duly
authorized the execution, delivery and performance of this
Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and
delivery by the Seller, constitutes a valid, legal and binding
obligation
of the Purchaser, enforceable against the Purchaser in
accordance with the
terms hereof, subject to (A) applicable bankruptcy,
insolvency,
reorganization, receivership, moratorium and other laws
affecting the
enforcement of creditors' rights generally, and (B) general
principles of
equity, regardless of whether such enforcement is considered in
a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution
and
delivery of this Agreement and its performance of, and
compliance with,
the terms of this Agreement will not constitute a violation of,
any law,
any judgment, order or decree of any court or arbiter, or any
order,
regulation or demand of any federal, state or local governmental
or
regulatory authority, which violation, in the Purchaser's good
faith and
reasonable judgment, is likely to affect materially and
adversely either
the ability of the Purchaser to perform its obligations under
this
Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the
Purchaser's
knowledge, threatened against the Purchaser which would prohibit
the
Purchaser from entering into this Agreement or, in the
Purchaser's good
faith and reasonable judgment, is likely to materially and
adversely
affect either the ability of the Purchaser to perform its
obligations
under this Agreement or the financial condition of the
Purchaser.
(vii) The Purchaser has not dealt with any broker,
investment
banker, agent or other person, other than the Seller, the
Underwriters,
the Initial Purchasers and their respective affiliates, that may
be
entitled to any commission or compensation in connection with
the sale of
the Mortgage Loans or the consummation of any of the
transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration
or filing with, or notice to, any governmental authority or
court is
required, under federal or state law, for the Purchaser's
execution,
delivery and performance of or compliance by the Purchaser with
this
Agreement, or the consummation by the Purchaser of any
transaction
contemplated hereby, other than (1) such consents,
approvals,
authorizations, qualifications, registrations, filings or
notices as have
been obtained, made or given and (2) where the lack of such
consent,
approval, authorization, qualification, registration, filing or
notice
would not have a material adverse effect on the performance by
the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of
any
of the representations and warranties set forth above which
materially and
adversely affects the interests of the Seller, the party
discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 6. Repurchases; Substitutions.
(a) If any party to this Agreement discovers that any
document
constituting a part of a Mortgage File has not been delivered
within the time
periods provided for herein, has not been properly executed, is
missing, does
not appear to be regular on its face or contains information
that does not
conform in any material respect with the corresponding
information set forth in
the Mortgage Loan Schedule (each, a "Defect"), or discovers or
receives notice
of a breach of any representation or warranty of the Seller made
pursuant to
Section 4(a) of this Agreement with respect to any Mortgage Loan
(a "Breach"),
such party shall give prompt written notice thereof to each of
the Rating
Agencies, the Seller, the parties to the Pooling and Servicing
Agreement and the
Controlling Class Representative. If any such Defect or Breach
materially and
adversely affects the value of any Mortgage Loan, the value of
the related
Mortgaged Property or the interests therein of the Purchaser,
the Trustee or any
Certificateholders, then such Defect shall constitute a
"Material Defect" or
such Breach shall constitute a "Material Breach," as the case
may be; provided,
however, that if any of the documents specified in clauses (i),
(ii), (vii),
(xi) and (xvii) of the definition of "Mortgage File" is not
delivered, and is
certified as missing, pursuant to the first paragraph of Section
2.01(b) of the
Pooling and Servicing Agreement, it shall be deemed a Material
Defect. Promptly
upon receiving written notice of any such Material Defect or
Material Breach
with respect to a Mortgage Loan (including through a written
notice given by any
party hereto, as provided above), the Seller shall, not later
than 90 days from
the Seller's receipt of notice from the Wachovia Master
Servicer, the Special
Servicer, the Trustee or the Custodian of such Material Defect
or Material
Breach, as the case may be (or, in the case of a Material Defect
or Material
Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the
meaning of the REMIC Provisions, not later than 90 days after
the Seller or any
party to the Pooling and Servicing Agreement discovering such
Material Defect or
Material Breach) (any such 90-day period, the "Initial
Resolution Period"), (i)
cure the same in all material respects, (ii) repurchase the
affected Mortgage
Loan at the applicable Repurchase Price or (iii) substitute a
Qualifying
Substitute Mortgage Loan for such affected Mortgage Loan
(provided that in no
event shall such substitution occur later than the second
anniversary of the
Closing Date) and pay to the Wachovia Master Servicer for
deposit into the
Collection Account any Substitution Shortfall Amount in
connection therewith;
provided, however, that with respect to any Material Defect
arising from a
missing document as to which the Trustee closing date
certification stated the
Trustee was not in possession of such document on the Closing
Date pursuant to
the first sentence of the second paragraph of Section 2.02 of
the Pooling and
Servicing Agreement, the Seller shall have 30 days to cure such
Material Defect;
provided, further, that with respect to any Material Defect
arising from a
missing document as to which the Trustee inadvertently certified
its possession
of such document (x) as of the Closing Date, in the form of
Exhibit T-1 to the
Pooling and Servicing Agreement or (y) no later than 45 days
following the
Closing Date, in the form of Exhibit T-2 to the Pooling and
Servicing Agreement,
the Seller shall have 30 days to cure the Material Defect
relating to the
missing document; provided, further, that if (i) such Material
Defect or
Material Breach (other than one relating to the immediately
preceding proviso)
is capable of being cured but not within the Initial Resolution
Period, (ii)
such Material Defect or Material Breach is not related to any
Mortgage Loan's
not being a "qualified mortgage" within the meaning of the REMIC
Provisions and
(iii) the Seller has commenced and is diligently proceeding with
the cure of
such Material Defect or Material Breach within the Initial
Resolution Period,
then the Seller shall have an additional period equal to the
applicable
Resolution Extension Period to complete such cure or, failing
such cure, to
repurchase the Mortgage Loan or substitute a Qualifying
Substitute Mortgage
Loan. The Seller shall have an additional 90 days (without
duplication of the
additional 90-day period set forth in the last sentence of the
definition of
Resolution Extension Period) to cure such Material Defect or
Material Beach,
provided that, the Seller has commenced and is diligently
proceeding with the
cure of such Material Defect or Material Breach and such failure
to cure is
solely the result of a delay in the return of documents from the
local filing or
recording authorities. Notwithstanding the foregoing, if a
Mortgage Loan is not
secured by a hotel, restaurant (operated by a Borrower),
healthcare facility,
nursing home, assisted living facility, self-storage facility,
theatre,
manufactured housing or fitness center (operated by a Borrower)
property, then
the failure to deliver to the Trustee copies of the UCC
financing statements
with respect to such Mortgage Loan shall not be a Material
Defect.
If the Seller is notified of a Defect in any Mortgage File
that
corresponds to information set forth in the Mortgage Loan
Schedule, the Seller
shall promptly correct such Defect and provide a new, corrected
Mortgage Loan
Schedule to the Purchaser, which corrected Mortgage Loan
Schedule shall be
deemed to amend and replace the existing Mortgage Loan Schedule
for all
purposes. The failure of the Wachovia Master Servicer, the
Special Servicer or
the Trustee to notify the Seller of a Material Defect or
Material Breach shall
not constitute a waiver of any cure or repurchase obligation,
provided that the
Seller must receive written notice thereof as described in this
Section 6(a)
before commencement of the Initial Resolution Period.
Notwithstanding the foregoing, if (x) there exists a Breach of
any
representation or warranty on the part of the Seller as set
forth in, or made
pursuant to, clause 38 of Exhibit C to this Agreement relating
to fees and
expenses payable by the Borrower associated with the exercise of
a defeasance
option, a waiver of a "due-on-sale" provision or a
"due-on-encumbrance"
provision or the release of any Mortgaged Property, and (y) the
related Mortgage
Loan documents specifically prohibit the Wachovia Master
Servicer or Special
Servicer from requiring the related Borrower to pay such fees
and expenses,
then, upon notice by the Wachovia Master Servicer or Special
Servicer, the
Seller shall transfer to the Collection Account, within 90 days
of the Seller's
receipt of such notice, the amount of any such fees and expenses
borne by the
Trust Fund that are the basis of such Breach. Upon its making
such deposit, the
Seller shall be deemed to have cured such Breach in all
respects. Provided such
payment is made, this paragraph describes the sole remedy
available to the
Purchaser and its assignees regarding any such Breach,
regardless of whether it
constitutes a Material Breach, and the Seller shall not be
obligated to
repurchase or otherwise cure such Breach.
(b) In connection with any repurchase of, or substitution for,
a
Mortgage Loan contemplated by this Section 6, (A) the Trustee,
the Wachovia
Master Servicer (with respect to any such Mortgage Loan other
than a Specially
Serviced Loan) and the Special Servicer (with respect to any
such Mortgage Loan
that is a Specially Serviced Loan) shall each tender to the
Seller, and the
Seller shall be entitled to receive therefrom, upon delivery (i)
to each of the
Wachovia Master Servicer or Special Servicer, as applicable, of
a trust receipt
and (ii) to the Trustee by the Wachovia Master Servicer or the
Special Servicer,
as applicable, of a Request for Release and an acknowledgement
by the Wachovia
Master Servicer or the Special Servicer, as applicable, of its
receipt of the
Repurchase Price or the Substitution Shortfall Amount from the
Seller, (1) all
portions of the Mortgage File and other documents pertaining to
such Mortgage
Loan possessed by it and (2) each document that constitutes a
part of the
Mortgage File that was endorsed or assigned to the Trustee shall
be endorsed or
assigned without recourse in the form of endorsement or
assignment provided to
the Trustee by the Seller, as the case may be, to the Seller as
shall be
necessary to vest in the Seller the legal and beneficial
ownership of each
Removed Mortgage Loan to the extent such ownership was
transferred to the
Trustee, and (B) the Trustee shall release, or cause the release
of, any escrow
payments and reserve funds held by or on behalf of the Trustee,
the Wachovia
Master Servicer or the Special Servicer, in respect of such
Removed Mortgage
Loan(s) to the Seller.
(c) This Section 6 provides the sole remedies available to
the
Purchaser, and its successors and permitted assigns (i.e., the
Trustee and the
holders of the Certificates) in respect of any Defect in a
Mortgage File or any
Breach. If the Seller defaults on its obligations to cure, to
repurchase, or to
substitute for, any Mortgage Loan in accordance with this
Section 6, or disputes
its obligation to cure, to repurchase, or to substitute for, any
Mortgage Loan
in accordance with Section 6, the Purchaser or the Trustee, as
applicable, may
take such action as is appropriate to enforce such payment or
performance,
including, without limitation, the institution and prosecution
of appropriate
proceedings. To the extent the Purchaser or the Trustee, as
applicable, prevails
in such proceeding, the Seller shall reimburse the Purchaser or
the Trustee, as
applicable, for all necessary and reasonable costs and expenses
incurred in
connection with the enforcement of such obligation of the Seller
to cure, to
repurchase, or to substitute for, any Mortgage Loan in
accordance with this
Section 6.
(d) If one or more (but not all) of the Mortgage Loans
constituting
a cross-collateralized group of Mortgage Loans are to be
repurchased or
substituted by the Seller as contemplated by this Section 6,
then, prior to the
subject repurchase or substitution, the Seller or its designee
shall use its
reasonable efforts, subject to the terms of the related Mortgage
Loan(s), to
prepare and, to the extent necessary and appropriate, have
executed by the
related Borrower and record, such documentation as may be
necessary to terminate
the cross-collateralization between the Mortgage Loan(s) in
such
cross-collateralized group of Mortgage Loans that are to be
repurchased or
substituted, on the one hand, and the remaining Mortgage Loan(s)
therein, on the
other hand, such that those two groups of Mortgage Loans are
each secured only
by the Mortgaged Properties identified in the Mortgage Loan
Schedule as directly
corresponding thereto; provided that, no such termination shall
be effected
unless and until the Controlling Class Representative, if one is
then acting,
has consented in its sole discretion and the Trustee has
received from the
Seller (i) an Opinion of Counsel to the effect that such
termination would not
cause an Adverse REMIC Event to occur and (ii) written
confirmation from each
Rating Agency that the then current rating assigned to any of
the Certificates
that are currently being rated by such Rating Agency will not be
qualified,
downgraded or withdrawn by reason of such termination; provided,
further, that
the Seller, in the case of the related Mortgage Loans, may, at
its option and
within the 90-day cure period described above (and any
applicable extension
thereof), purchase or substitute for the entire subject
cross-collateralized
group of Mortgage Loans in lieu of effecting a termination of
the
cross-collateralization. All costs and expenses incurred by the
Trustee or any
Person acting on its behalf pursuant to this paragraph shall be
included in the
calculation of the Repurchase Price for the Mortgage Loan(s) to
be repurchased
or substituted. If the cross-collateralization of any
cross-collateralized group
of Mortgage Loans cannot be terminated as contemplated by this
paragraph, then
the Seller shall repurchase or substitute the entire subject
cross-collateralized group of Mortgage Loans.
Notwithstanding the foregoing, if there is a Material Breach
or
Material Defect with respect to one or more Mortgaged Properties
with respect to
a Mortgage Loan or cross-collateralized group of Mortgage Loans,
the Seller will
not be obligated to repurchase the Mortgage Loan or
cross-collateralized group
of Mortgage Loans if (i) the affected Mortgaged Property may be
released
pursuant to the terms of any partial release provisions in the
related Loan
Documents (and such Mortgaged Property is, in fact, released),
(ii) the
remaining Mortgaged Property(ies) satisfy the requirements, if
any, set forth in
the Loan Documents and the Seller provides an Opinion of Counsel
to the effect
that such release would not cause an Adverse REMIC Event to
occur and (iii) each
Rating Agency then rating the Certificates shall have provided
written
confirmation that such release would not cause the then-current
ratings of the
Certificates rated by it to be qualified, withdrawn or
downgraded.
As to any Qualifying Substitute Mortgage Loan, at the direction
of
the Trustee, the Seller shall deliver to the Custodian for such
Qualifying
Substitute Mortgage Loan (with a copy to the Wachovia Master
Servicer), the
related Mortgage File with the related Note endorsed as required
by Exhibit B
hereto. Pursuant to the Pooling and Servicing Agreement, Monthly
Payments due
with respect to Qualifying Substitute Mortgage Loans in or prior
to the month of
substitution shall not be part of the Trust Fund and will be
retained by the
Wachovia Master Servicer and remitted by the Wachovia Master
Servicer to the
Seller on the next succeeding Distribution Date. For the month
of repurchase or
substitution, distributions to Certificateholders pursuant to
the Pooling and
Servicing Agreement will include the Monthly Payment(s) due on
the related
Removed Mortgage Loan and received by the Wachovia Master
Servicer or the
Special Servicer on behalf of the Trust on or prior to the
related date of
repurchase or substitution, as applicable, and the Seller shall
be entitled to
retain all amounts received thereafter in respect of such
Removed Mortgage Loan.
In any month in which the Seller substitutes one or more
Qualifying
Substitute Mortgage Loans for one or more Removed Mortgage
Loans, pursuant to
the Pooling and Servicing Agreement, the Wachovia Master
Servicer will determine
the applicable Substitution Shortfall Amount. At the direction
of the Trustee,
the Seller shall deposit cash equal to such amount into the
Collection Account
concurrently with the delivery of the Mortgage Files for such
Qualifying
Substitute Mortgage Loans, without any reimbursement thereof. At
the direction
of the Trustee, the Seller shall give written notice to the
Purchaser and the
Wachovia Master Servicer of such deposit.
SECTION 7. Closing.
The closing of the purchase and sale of the Mortgage Loans
(the
"Closing") shall be held at the offices of Cadwalader,
Wickersham & Taft LLP,
One World Financial Center, New York, New York 10281 at 10:00
a.m., New York
City time, on the Closing Date.
The Closing shall be subject to each of the following
conditions:
(i) All of the representations and warranties of the Seller and
the
Purchaser specified herein shall be true and correct as of the
Closing
Date, and the Aggregate Cut-off Date Balance shall be within the
range
permitted by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"),
in such forms as are agreed upon and acceptable to the Purchaser
and, in
the case of the Pooling and Servicing Agreement (insofar as such
Agreement
affects the obligations of the Seller hereunder) and other
documents to be
delivered by or on behalf of the Purchaser, to the Seller, shall
be duly
executed and delivered by all signatories as required pursuant
to the
respective terms thereof;
(iii) The Seller shall have delivered and released to the
Trustee,
the Purchaser or the Purchaser's designee, as the case may be,
all
documents and funds required to be so delivered on or before the
Closing
Date pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser
pursuant to
Section 3 shall be satisfactory to the Purchaser in its
reasonable
determination;
(v) All other terms and conditions of this Agreement required to
be
complied with on or before the Closing Date shall have been
complied with,
and the Seller shall have the ability to comply with all terms
and
conditions and perform all duties and obligations required to be
complied
with or performed after the Closing Date;
(vi) The Seller shall have received the Mortgage Loan
Purchase
Price, and the Seller shall have paid or agreed to pay all fees,
costs and
expenses payable by it to the Purchaser pursuant to this
Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with
its
terms.
Both parties agree to use their best efforts to perform
their
respective obligations hereunder in a manner that will enable
the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement and a bill of sale duly executed and
delivered by
the Purchaser and the Seller;
(b) An Officer's Certificate substantially in the form of
Exhibit D
hereto, executed by the Secretary or an assistant secretary of
the Seller, and
dated the Closing Date, and upon which the Purchaser, the
Initial Purchasers and
each Underwriter may rely, attaching thereto as an exhibit the
By-Laws of the
Seller;
(c) A certificate of good standing regarding the Seller from
the
Secretary of State for the State of Maryland, dated not earlier
than 30 days
prior to the Closing Date;
(d) Written opinions of counsel (which may include opinions
of
in-house counsel, outside counsel or a combination thereof) for
the Seller, in
form reasonably acceptable to counsel for the Purchaser and
subject to such
reasonable assumptions and qualifications as may be requested by
counsel for the
Seller and acceptable to counsel for the Purchaser, dated the
Closing Date and
addressed to the Purchaser, the Initial Purchasers and each
Underwriter;
(e) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance
of the
Certificates, each of which shall include the Purchaser, the
Initial Purchasers
and each Underwriter as an addressee; and
(f) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Costs.
The Seller shall pay (or shall reimburse the Purchaser to the
extent
that the Purchaser has paid) (a) the fees and expenses of
counsel to the Seller,
(b) the expenses of filing or recording UCC assignments of
financing statements,
assignments of Mortgage and Reassignments of Assignments of
Leases, Rents and
Profits with respect to the Mortgage Loans as contemplated by
Article 2 of the
Pooling and Servicing Agreement and (c) on the Closing Date, the
Seller's pro
rata portion of the aggregate of the following amounts (the
Seller's pro rata
portion to be determined according to the percentage that the
aggregate
principal balance of the Mortgage Loans as of the Cut-off Date
represents of the
aggregate principal balance of the Mortgage Loans and the Other
Mortgage Loans
as of the Cut-off Date): (i) the costs and expenses of printing
(or otherwise
reproducing) and delivering a preliminary and final Prospectus
relating to the
Certificates; (ii) the up front fees, costs, and expenses of the
Trustee
(including reasonable attorneys' fees) incurred in connection
with the Trustee
entering into and performing certain of its obligations under
the Pooling and
Servicing Agreement; (iii) the filing fee charged by the
Securities and Exchange
Commission for registration of the Certificates so registered;
(iv) the fees
charged by the Rating Agencies to rate the Certificates so
rated; (v) the fees
and expenses of counsel to the Underwriters; (vi) the fees and
expenses of
counsel to the Purchaser; (vii) the fees and expenses of counsel
to the Wachovia
Master Servicer; (viii) the cost of obtaining a "comfort letter"
from a firm of
certified public accountants selected by the Purchaser and the
Seller with
respect to numerical information in respect of the Mortgage
Loans and the Other
Mortgage Loans included in the Prospectus; and (ix) other
miscellaneous costs
and expenses agreed upon by the parties hereto. All other costs
and expenses in
connection with the transactions contemplated hereunder shall be
borne by the
party incurring such expense.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be
in
writing and shall be deemed to have been duly given if (a)
personally delivered,
(b) mailed by registered or certified mail, postage prepaid and
received by the
addressee, (c) sent by overnight mail or courier service and
received by the
addressee or (d) transmitted by facsimile (or any other type of
electronic
transmission agreed upon by the parties) and confirmed by a
writing delivered by
any of the means described in (a), (b) or (c), if (i) to the
Purchaser,
addressed to Deutsche Mortgage & Asset Receiving
Corporation, 60 Wall Street,
New York, New York 10005, Attention: Lainie Kaye, facsimile no.
(212) 797-4487,
with a copy to Anna Glick, Esq., Cadwalader, Wickersham &
Taft LLP, One World
Financial Center, New York, New York 10281, facsimile no. (212)
504-6822, or
such other address or facsimile number as may hereafter be
furnished to the
Seller in writing by the Purchaser; and if (ii) to the Seller,
addressed to
German American Capital Corporation, 60 Wall Street, New York,
New York 10005,
Attention: Lainie Kaye, facsimile no. (212) 797-4487, or to such
other address
or facsimile number as the Seller may designate in writing to
the Purchaser.
SECTION 11. Notice of Exchange Act Reportable Events.
The Seller hereby agrees to deliver to the Purchaser and the
Certificate Administrator any disclosure information relating to
any event,
specifically relating to the Seller, reasonably determined in
good faith by the
Purchaser as required to be reported on Form 8-K, Form 10-D or
Form 10-K by the
Trust Fund (in formatting reasonably appropriate for inclusion
in such form),
insofar as such disclosure is required under Items 1117 and 1119
of Regulation
AB and Item 1.03 to Form 8-K. The Seller shall use reasonable
efforts to deliver
proposed disclosure language relating to any event, specifically
relating to the
Seller, described under Items 1117 and 1119 of Regulation AB and
Item 1.03 to
Form 8-K to the Certificate Administrator and the Purchaser as
soon as
reasonably practicable after the Seller becomes aware of such
event and in no
event more than two business days following the occurrence of
such event if such
event is reportable under Item 1.03 to Form 8-K. The obligation
of the Seller to
provide the above referenced disclosure materials will terminate
upon notice or
other written confirmation from the Purchaser or the Certificate
Administrator
that the Certificate Administrator has filed a Form 15 with
respect to the Trust
Fund as to that fiscal year in accordance with Section 10.10(a)
of the Pooling
and Servicing Agreement or the reporting requirements with
respect to the Trust
under the Securities Exchange Act of 1934, as amended, have
otherwise
automatically suspended. The Seller hereby acknowledges that the
information to
be provided by it pursuant to this Section will be used in the
preparation of
reports meeting the reporting requirements of the Trust under
Section 13(a)
and/or Section 15(d) of the Securities Exchange Act of 1934, as
amended.
SECTION 12. Representations, Warranties and Agreements to
Survive
Delivery.
All representations, warranties and agreements contained in
this
Agreement, incorporated herein by reference or contained in the
certificates of
officers of the Seller submitted pursuant hereto, shall remain
operative and in
full force and effect and shall survive delivery of the Mortgage
Loans by the
Seller to the Purchaser or its designee.
SECTION 13. Severability of Provisions.
Any part, provision, representation, warranty or covenant of
this
Agreement that is prohibited or which is held to be void or
unenforceable shall
be ineffective to the extent of such prohibition or
unenforceability without
invalidating the remaining provisions hereof. Any part,
provision,
representation, warranty or covenant of this Agreement that is
prohibited or
unenforceable or is held to be void or unenforceable in any
particular
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of
such prohibition or unenforceability without invalidating the
remaining
provisions hereof, and any such prohibition or unenforceability
in any
particular jurisdiction shall not invalidate or render
unenforceable such
provision in any other jurisdiction. To the extent permitted by
applicable law,
the parties hereto waive any provision of law which prohibits or
renders void or
unenforceable any provision hereof.
SECTION 14. Counterparts.
This Agreement may be executed in any number of counterparts,
each
of which shall be deemed to be an original, but all of which
together shall
constitute one and the same instrument.
SECTION 15. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICTS
OF LAW PRINCIPLES EXCEPT THAT THE PARTIES HERETO INTEND THAT THE
PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL
APPLY TO THIS
AGREEMENT.
SECTION 16. Further Assurances.
The Seller and the Purchaser agree to execute and deliver
such
instruments and take such further actions as the other party
may, from time to
time, reasonably request in order to effectuate the purposes and
to carry out
the terms of this Agreement.
SECTION 17. Successors and Assigns.
The rights and obligations of the Seller under this Agreement
shall
not be assigned by the Seller without the prior written consent
of the
Purchaser, except that any person into which the Seller may be
merged or
consolidated, or any corporation or other entity resulting from
any merger,
conversion or consolidation to which the Seller is a party, or
any person
succeeding to all or substantially all of the business of the
Seller, shall be
the successor to the Seller hereunder. The Purchaser has the
right to assign its
interest under this Agreement, in whole or in part (excluding
the Purchaser's
rights and remedies under Section 9 and the GACC Indemnification
Agreement), to
the Trustee, for the benefit of the Certificateholders, as may
be required to
effect the purposes of the Pooling and Servicing Agreement and,
upon such
assignment, the Trustee shall, to the extent of such assignment,
succeed to the
rights and obligations hereunder of the Purchaser, provided that
the Trustee
shall have no right to further assign such rights to any other
Person. Subject
to the foregoing, this Agreement shall bind and inure to the
benefit of and be
enforceable by the Seller and the Purchaser, and their permitted
successors and
permitted assigns.
SECTION 18. Amendments.
No term or provision of this Agreement may be amended,
waived,
modified or in any way altered, unless such amendment, waiver,
modification or
alteration is in writing and signed by a duly authorized officer
of the party
against whom such amendment, waiver, modification or alteration
is sought to be
enforced.
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their
names to be signed hereto by their respective duly authorized
officers as of the
date first above written.
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Charles Y. Lee
--------------------------------------
Name: Charles Y. Lee
Title: Vice President
By: /s/ Boris
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